Tim Elliot: Hello and welcome to Lawgical, the regular weekly podcast from the Dubai-based law firm, HPL Yamalova & Plewka, still the Gulf Region’s first and the only legal podcast. I’m Tim Elliot, here again at the firm’s offices. We’re on the 18th floor of Reef Tower in Jumeirah Lakes Towers here in Dubai. Here is the Managing Partner, Ludmila Yamalova. Lovely to see you.
Ludmila Yamalova: Good to see you too and thanks for being back in our office. Always a pleasure to see you.
Tim Elliot: Now, each week we consider legal questions particular to the United Arab Emirates. In this edition, Ludmila, it’s a discussion about the domestic workers law here in the emirates. What I want to do is start with a recent case of a properly licensed domestic workers recruitment agency. Now, there’s a complaint. Somebody is unhappy with a worker from this agency that’s been assigned to them. A complaint is made about the worker to the appropriate individuals at one of the agency’s branches. They inform the client that they’re going to deduct from the maid’s salary and punish her. It’s a complaint we hear regularly, isn’t it?
Ludmila Yamalova: Yes, indeed. In fact, this is just one of the latest examples of this particular complaints, but it has permeated this industry for many years, and that is, in particular the maids or domestic workers’ concern that their agency will punish them for perhaps either not doing a good enough job for their employer or perhaps being returned back to the agency earlier than they were contractually expected to be returned. The permeating fear has been that they will be penalized by virtue of the agency’s subtracting part of their salary.
What we’ve heard in the past, and the concern has been fairly consistent, is that every time something like this happens the agency subtracts about 500 dirhams off their salaries. Now, on average from what we’ve surmised is that the salary of domestic workers that are employed by agencies are about 1,500 dirhams to perhaps – I mean, we haven’t actually heard of any higher salaries, but maybe up to 2,000 dirhams – but generally it’s about 1,500 dirhams. So 500 dirhams to be subtracted from a salary of 1,500 dirhams, you can imagine is fairly significant, and that’s apparently for every violation.
For example, if you have contracted a worker from the agency and perhaps she worked for you for about a week and you were not happy with her services, and the agency does offer you a choice of exchanging that worker for someone else. Every time you return the worker, allegedly they subtract 500 dirhams from that worker. Now imagine if that same worker then is being contracted by another family a week later, and the same thing happens, and that is the family returns the worker earlier than expected. Once again, the agency will subtract another 500 dirhams. Again, this is on the basis of many statements we have heard from a lot of different domestic workers. In theory, that worker at the end of the month may receive nothing if every time, for every return, or every noncompliance, if you will, they are deducting 500 dirhams from the 1,500-dirham salary.
Tim Elliot: What I want to do is come back to this particular case and a little more example in a minute, but let’s just look at protection that domestic workers are afforded under the domestic workers law. It is specifically part of the U.A.E. law. It’s a federal law. Number 15 of 2017 is a recent update and that supports service workers, but just run us through the provisions under that law.
Ludmila Yamalova: This is actually a very interesting law only because it’s quite new. As you rightfully mentioned, it was issued in 2017, and just to give the perspective of what that means, it is important to compare this particular law to the U.A.E. federal employment law or the labor law, as it is often referred, which has been in existence since the 1980s. In fact, until this law was introduced, the labor law that has been in existence did not apply to the service workers or to domestic workers. The labor law explicitly states that it does not apply to domestic workers, so therefore, until this domestic worker law was introduced there was no specific body of law that applied to domestic workers. Now, how were they ever, I guess, measured or held accountable or protected if there was no law? In fact, there wasn’t really a specific legislative guideline as to the rights and benefits that were afforded to the domestic works. In fact, most of the conditions of their employment would only be detailed in the employment contracts. There was no law in addition to whatever was the text in the particular employment contract.
Now, with the introduction of this federal law, number 15 of 2017, domestic workers are now more or less being brought on par with the terms and conditions and rights and obligations that are afforded to other workers under the U.A.E. employment law. In short, the rights that are afforded to domestic workers are very similar to those that are afforded to employment or to regular workers under the U.A.E. labor law.
What that means in more specific terms is, for example, now domestic workers by law are allowed – not allowed – are obligated, the employer is obligated to give domestic workers 30 days of vacation a year. Now this is set by law. Also, the payment of the salary is set by law. The payment of the salary cannot be delayed for more than 10 days. In the past, that had been an issue because often domestic workers would not be paid on time. In the past, one of the excuses had been used was, well, we will pay you when you go back home, and until then we don’t want to pay you because you may lose your money. These are actually real arguments we have heard before. Under this law, the domestic workers are entitled to receive their salary no more than 10 days after the salary is due.
They are also entitled to go back home, at least every year. However, they can opt for a payment of salary in lieu of going back home for that particular year, but they may not opt for this for more than 2 years in a row. In other words, you as an employer cannot ask your domestic worker, let’s say you are a nanny, to not go home for more than 2 years. One year is okay, but no more than 2 years. After the second year, you are obligated as an employer to give them their time to go back home. Then as an employer, you are also obligated to pay them for the air ticket to go home. The air ticket, by the way, is only offered for every 2 years of going back home, not every year. Obviously, the employers can include other or additional benefits in the employment agreement in addition to the law, but this law sets the benchmark or the floor, if you will, of what are the minimum standards that exist for domestic workers.
Also, now domestic workers are allowed to have sick days and one day off a week, and more importantly and more interestingly is that now domestic workers are specifically entitled to what’s called the end-of-service benefits, and that is, in short, 14 days for every year of service. Let’s say, I have had a nanny that’s worked for me for 3 years. In the last 3 years, she does not have to take the 14. I don’t have to pay her out the 14 days every time, but they accrue. I have a choice. Do I either pay her 14 days for every year of service and that is by now 14 times 3. I can either pay her the 14 days at the end of every contract or I could pay it to her in aggregate after how many years of her employment with us.
Those are some of the benefits. In short, these kinds of benefits are very similar to those that exist for other employees that are subject to the labor law.
Tim Elliot: There is a medical insurance benefit in there written into the law as well, isn’t there?
Ludmila Yamalova: Yes. There is medical insurance that is written into the law, but also the medical insurance these days is also incorporated in practice. That is, whenever you apply for your domestic worker’s visa, you cannot apply for a visa unless you submit to the government evidence of health insurance. Yes, insurance is definitely also a benefit that they are entitled to by law.
Tim Elliot: Okay. Let’s bring it back to the original case that we started this podcast with. You’ve heard several other people say that workers told them that if they send them back to their agency, the agency deducts from their salary perhaps as much as 500 dirhams at a time. It’s common practice, but that’s not compliant with the law. What does the law say about permitted salary deductions? Does it say anything about that?
Ludmila Yamalova: There is a specific provision that deals with an employer’s right to potentially deduct part of an employee’s salary. However, this provision is very specific and it’s very limited. There are a few important elements: (1) The deductions can only be done if there is serious harm or damage to the employer’s property. First of all, it has to be some sort of physical damage. (2) The deduction has to be agreed with by the employee, i.e., the domestic worker herself or himself.
Tim Elliot: So consent.
Ludmila Yamalova: There has to be consent. Correct. If there’s no consent, the deduction has to be agreed through the Ministry, that is the governing authority that oversees the recruitment agencies and therefore has jurisdiction over the domestic workers. Then, in any event, deductions cannot be more than one fourth of the monthly salary. In a case of a nanny, let’s say that receives a 1,500 dirham salary from her agency, 500 dirhams is one third of her salary which is above the legal threshold of the deduction and that is provided that there is consent from the nanny or from the domestic worker. In most cases, we have never really heard of domestic workers agreeing to the deductions, or at least in writing, it is very possible that there may be a document that the agency requires their employees to sign as proof. But in any event, it cannot be more than one fourth of the salary.
Tim Elliot: It’s interesting, isn’t it? Because it’s not to say that all domestic worker recruitment agencies are unreasonable, but a definition of consent would be a good thing to have, I guess.
Ludmila Yamalova: Well, yes, and also don’t forget there has to also be some sort of harm. There has to be proof of some kind of damage. In the example that we started with where the employee is being returned to the agency because the employer was not happy with their services, well, not being happy with somebody’s service, does that equate to physical harm or physical damage to the employer’s property as the law requires? It doesn’t. You could, I guess, argue that somehow the time that went in and the resources that were spent in bringing this person to their new home and trying to train them perhaps, but this is not what the law says. The law clearly requires some kind of physical damage to employer’s property. Obviously, one’s time and resources are not so much property in the sense of the law.
Tim Elliot: Sure. Dropping a few plates, for example, you can understand that’s a relatively easy deduction to make but dropping a Ming vase is an entirely different example, surely.
Ludmila Yamalova: Exactly. But also, I forgot a very important element, and that is that whenever the damage happens, the damage has to be because of the worker’s mistake or gross negligence, for example. It’s not just that accidentally you dropped a plate and right away there is a deduction for the value of that plate. It actually has to be done by virtue of the worker’s incompetence or mistake. You can understand that is a pretty reasonable element, especially given the nature of the domestic worker’s role in the household. That means they will be dealing with plates and they’re fragile items, and so if every time you punish them because they’ve ruined that piece of clothing accidentally, it would be very difficult for them to survive.
Tim Elliot: In the event that domestic service received weren’t good enough or damage was caused in some way as you’ve outlined, the agency in question, do they have to offer a refund irrespective of whether a maid or a domestic worker has had pay docked? Do they have to then say to their client, we will pay you? How is that policed?
Ludmila Yamalova: There isn’t really anything in the law that affords that sort of protection to the employer. Perhaps there could be insurance claims, but that’s not really covered in this particular law because the law here really sets out more the rights and obligations of domestic workers and the agency that employs them and not so much the third party, i.e., the ultimate employer that then contracts the domestic worker.
Tim Elliot: Okay. Let’s bring it back to the domestic worker. Final question. Who is in charge of monitoring salary deductions and the application of the law? In effect, who polices the recruitment agency?
Ludmila Yamalova: In short, it’s the Ministry of Amortization and Human Resources, whereas before it was named the Ministry of Labor. They are the ultimate authority that can police compliance with their applicable laws and also licenses agencies that provide these kinds of services. Now, the answer to the question is important because as of now with the introduction of this law domestic workers are (1) now subject to or fall under the jurisdiction of the Ministry of Amortization and Human Resources, and (2) by virtue of that also, if there is a dispute, the ultimate forum where the disputes will be adjudicated is the Labor Court. Previously, employees and domestic workers before the introduction, they were not subject to the jurisdiction of the Ministry of Labor and therefore if they ever had a complaint and they wanted to go file a case with the court, the court requires some kind of NOC, a no objection certificate or a transfer letter from the Ministry, i.e., the Ministry of Labor, when you’re not subject to the Ministry of Labor, so you couldn’t even really bring a case to the court because you didn’t have the appropriate administrative document that would allow you to bring a court case for an employment dispute. Previously, most domestic workers, for example, would have to address their disputes to immigration authorities because that’s really the only authority that they were somewhat subject to because the immigration authority would be the one who would ultimately issue their licenses. But with the introduction of this law, they are now subject to the Ministry of Labor just like the rest of the employees in the U.A.E. and all of the disputes will ultimately be referred to the Labor Court, again, just as the cases with other employees. By the way, regarding the deductions, that particular provision in the domestic workers’ law is a very similar provision that exists in the Labor Court allowing employers and other contacts to deduct employee salaries under the same elements.
Tim Elliot: Ludmila, final, final, final, final point. Let’s just summarize, if you would, the support service workers law, federal law 15 of 2017.
Ludmila Yamalova: In brief summary, it’s a good law. It’s a good law that affords domestic workers very similar protection and rights as those that are afforded to other employees. In more specific terms, workers are specifically allowed a 30-day holiday per year and a visit home and a ticket paid to visit their family every two years. They are also offered end-of-service benefits which are about 14 days for every year of service. There are also provisions in the law about the number of hours that they are entitled to have to rest and that’s at least 12 hours and consecutively no less than eight hours, which is important because we’ve heard a lot of complaints in the past of workers being required to work 24/7 in many cases. There are also anti-discriminatory provisions in the law which expressly require for employers and agencies to treat workers with respect. There are also provisions requiring agencies and employers to pay for workers’ visa expenses and not to deduct those from workers, and this is again new provision. There are also a number of provisions setting out appropriate conditions for housing and food allowance and just overall treatment of the domestic worker. All in all, a great legislative development.
Tim Elliot: That’s federal law 15 of 2017 on support service workers. Ludmila Yamalova is the Managing Partner of the Dubai-based law firm, Yamalova & Plewka. As ever, Ludmila, appreciate your legal expertise.
Ludmila Yamalova: Thank you for an engaging discussion.
Tim Elliot: That’s it for Lawgical this time around. We can’t cover every aspect of the U.A.E.’s legal framework in each episode of this particular podcast, but if you have a specific question you would like answered, get in touch via Lylawyers.com or through any of our social channels, and we’ll try to answer it in a future edition of Lawgical. Plus, for a legal consultation Lylawyers.com is once again the best place to go. All you need to do is hit Contact.
